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Baroness Walmsley: My Lords, I am grateful to the Minister for his reply. I appreciate the support expressed by the noble Baronesses, Lady Noakes and Lady Gould of Potternewton. I accept the noble and learned Lord's suggestion as regards Amendment No. 59 that his wording is stronger than mine. I give in on that one; I think that the Minister is right.

However, the position on Amendments Nos. 60, 61, and 62 is somewhat different. A jury can sort out the difference between a defence and a successful defence—one that will get a paedophile off the hook. Far be it from me to want to write a paedophile's charter, but there is very little difference between our proposal to insert something about the emotional well-being of the child and subsection (3)(a), (b), or (c).

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Someone could try to defend himself from a charge of "inappropriate activity" by suggesting that he wanted to protect the child from sexually-transmitted infection by talking to the child regarding how he or she could have sex wearing a condom. In exactly the same way, a paedophile who was up to no good could also try to use that defence. Yet the noble and learned Lord seems to be perfectly happy with paragraphs (a), (b), and (c).

Sometimes such children are merely asking for advice on emotions and feelings, but where sexual activity is involved physical and emotional considerations can become mixed up. Therefore, the people who give such advice need the protection that could be provided by placing something on the face of the Bill that makes it clear that they are not doing anything wrong. I do not believe that our proposal would open up any more of a loophole for a potential paedophile than is the case with paragraphs (a), (b), or (c).

I do not intend to press Amendment No. 59 at this stage, but I may return to Amendment No. 61 on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60 to 62 not moved.]

Clause l7 [Meeting a child following sexual grooming etc.]:

Lord Astor of Hever moved Amendment No. 63:

    Page 7, line 30, leave out paragraphs (c) and (d) and insert ", and

(c) subsection (1B) applies."

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 64. This is an amended version of the amendments that we moved in Committee on the inclusion of those with a mental disorder or learning disability into the grooming offence under Clause 17.

In Committee I was grateful that the principle behind our amendments was welcomed. People with mental disorders or learning disabilities are often very trusting and easily exploited. Consequently, they are a target for sexual offenders. We should like them to be covered by Clause 17 in the same way as children are.

The noble and learned Lord the Minister and the noble Baroness, Lady Walmsley, pointed out—rightly—that there was a fundamental flaw in our original version. We have listened to those comments and altered the drafting of our original amendments. We want to provide safeguards and special protection, not to restrict the freedoms of those who can consent. The protection that Clause 17 offers to children should be extended to cover not all those with a mental disorder or learning disability, but only those whose capacity to consent is inhibited by their condition.

I hope that the noble Baroness, Lady Walmsley, and the noble and learned Lord the Minister will feel happy to support our amendments, which are designed to cover this very important and fundamental issue. As the clause is currently drafted, there is a dangerous loophole. We need to make sure that this is remedied.

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9 p.m.

Baroness Blatch: My Lords, I support my noble friend.

Once again I am glad to see the offence of grooming in the Bill. It is an important addition to the armoury of police and the courts in tackling child sex abuse. Its strength is that we do not have to wait for the sexual abuse to have taken place before the police can act. A single incident of sex abuse can be devastating to a child. It must be better to act pre-emptively to prevent the abuse.

I regret that my own amendment at Committee stage did not meet with more sympathy. I remain concerned that requiring proof of two previous communications will allow paedophiles who do all their grooming in a single, lengthy communication to get away with it.

None the less, it is a good offence, and it is added to considerably by Amendments Nos. 63 and 64 in the names of my noble friends. If a person has a mental disorder which means that they lack the capacity to consent, they are just as vulnerable to grooming as any child. They may, indeed, be even more trusting—in fact, in most cases they probably would be—and even more willing to be befriended by a stranger. They may have less of an idea about what is appropriate behaviour with a stranger.

The noble and learned Lord the Minister said when we debated the amendment in Committee that he would consider it. I hope that our hopes have not been raised only to be dashed tonight, and that the noble and learned Lord will look kindly on the amendment.

Baroness Walmsley: My Lords, I beg to shock the House. I agree with the noble Baroness, Lady Blatch, and the noble Lord, Lord Astor of Hever. I think that the amendment is very close to, if not exactly at, the point that I said in Committee we wanted to reach. It is vital that we get right in the Bill the rights and protection of people with mental disorders, and I believe that the amendment helps to achieve that. Therefore, we on these Benches support it.

Lord Falconer of Thoroton: My Lords, the amendments, unlike those tabled at the Committee stage, are restricted to those who lack the capacity to consent. In extending the offence of meeting a child following sexual grooming to those with a mental disorder who lack the capacity to consent, we would be transposing an offence specifically designed to deal with real cases—cases that have actually occurred—of abuse against children to a completely different situation involving adults. We are not aware of evidence of the need for this offence to protect those who lack the capacity to consent, whereas, as noble Lords will know, plenty of evidence exists with respect to children. If there is evidence, please bring it forward. It is not a criticism of the noble Lord, Lord Astor, either on this occasion or previously, to say that there is a great danger in making offences extend to areas where there is no evidence of a real problem.

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Just as Clause 17 is a response to a specific threat that we know to exist towards children, so Clauses 32 to 49 represent the equivalent response to a specific risk to those with a mental disorder or learning disability, based on evidence presented to the Sexual Offences Review.

The scrutiny of legislation should be restricted to evidence rather than to the consideration of thoughts and good ideas that occur in the course of the scrutiny process without first having had the opportunity to discover whether there is a real problem. As the noble Lord, Lord Astor, would be the first to point out, there is a big issue about striking the balance between, on the one hand, appropriate freedoms for those with mental disabilities—even those without the capacity to consent—and, on the other, children where there is a specific problem.

The clauses covering offences against people with a mental disorder or learning disability, of inducements and so on and the care worker offences are all a response to evidence. The abuse of those with a mental disorder who lack the capacity to consent is far more likely to be perpetrated by someone who has built up a face-to-face relationship of trust with the victim rather than by someone who contacts the victim on the Internet. Setting the Boundaries identified the case for a separate offence,

    "to recognise the special and often limited nature of the threats or deception needed to obtain sex with mentally impaired people".

That is why we have put in the Bill the group of offences concerning the use of inducements, threats or deception to take account of the various ways that mentally impaired people can be pressurised into having sex.

We have taken the appropriate measures, based on evidence, to provide justice for those with a mental disorder or learning disability who are subjected to sexual abuse or sexual coercion of whatever kind. I do not believe that Clause 17, which is designed for a quite distinct purpose and based upon specific cases advanced by those with experience in this matter, should be extended in the way proposed. Having thought about the matter very carefully, I do not believe that there is a basis for the amendment.

Lord Astor of Hever: My Lords, I thank my noble friend Lady Blatch for her support. She is absolutely right that those with mental disorders and learning difficulties are equally as vulnerable as children. I also thank the noble Baroness, Lady Walmsley, for her support.

I am sorry that the noble and learned Lord has not accepted the amendment. After all, the Minister said in Committee that the Government would consider it, focusing particularly on those without the capacity to consent. The noble and learned Lord said that I did not mention any evidence in my speech, which I kept deliberately short in an optimistic mood that the amendment would be accepted. However, I shall consider the matter further and read carefully what the Minister said. In the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 64 not moved.]

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